Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005791

First-tier Tribunal No: PA/50249/2024
LP/04448/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 21 July 2025

Before

UPPER TRIBUNAL JUDGE HOFFMAN

Between

KSK
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms U Miszkiel of Counsel, instructed by Logan Kingsley Solicitors
For the Respondent: Mrs A Nolan, Senior Home Office Presenting Officer

Heard at Field House (via CVP) on 15 July 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. The appellant, who is a national of Iraq, appeals with permission against the decision of First-tier Tribunal Judge Clarkson (“the judge”) promulgated on 25 September 2024 dismissing his appeal against the respondent’s decision dated 22 December 2023 to dismiss his asylum claim.
2. For the reasons given below, the appeal is allowed and remitted to the First-tier Tribunal for remaking.
Anonymity
3. The First-tier Tribunal made an order for anonymity and no application has been made to set that aside. In maintaining the order for anonymity, I have taken into account the strong public interest in open justice. However, in this case it is outweighed by the appellant’s interests, as his claim relates to international protection.
Background
4. The appellant entered the UK clandestinely along with his wife in 2021. He claimed asylum on 8 August 2021 on the basis that he is a former police officer from Kirkuk in Iraq who feared the relatives of a colleague who was killed by a bomb placed in a van that the appellant was responsible for driving. His asylum claim was refused on 22 December 2023 with a right of appeal.
The proceedings before the First-tier Tribunal
5. The appellant’s appeal against that decision was dismissed by the judge on 25 September 2024. The judge accepted that the appellant had been employed as a driver by an arm of the Independent Kurdish Regions government forces and that his vehicle did explode and kill the occupants as the appellant claimed. However, the judge did not accept that the appellant was at ongoing risk from the family of his dead colleague and he could therefore be expected to return to Kirkuk: see [20] to [39].
6. The judge then went on to consider the appellant’s claim that he would be unable to safely return to Kirkuk without his Iraqi ID card, the CSID, which he claimed had been destroyed in Turkey while he was en route to the UK. The judge found at [40] that the appellant would be familiar with the details of his family registrations and he could therefore be expected to apply for a new CSID. At [41], the judge found that the appellant would be returned to the Kurdish Region of Iraq (“KRI”) where, as a former police officer, he was unlikely to be at risk of ill-treatment as a result of security screening. At [43], the judge found that the appellant could obtain new ID documents on return to the KRI and “continue his life in the Kurdish region”. Concluding at [44], the judge found that “I have sufficient evidence…to show to the required standard that the Appellant is able to be returned to his home area. I therefore do not find he is entitled to humanitarian protection as there is no real risk of serious harm.”
The appeal to the Upper Tribunal
7. On 30 January 2025, Upper Tribunal Judge McWilliam granted the appellant permission to appeal the judge’s decision on one ground: that the judge had incorrectly based her assessment of future risk to the appellant on the premise that he originates from the KRI when, in fact, he originates from Kirkuk in government-controlled Iraq.
The hearing
8. The error of law hearing took place on 15 July 2025.
9. At the outset of the hearing, Mrs Nolan, representing the respondent, accepted that the judge did make a material error of law by considering the risk on return and the ability to redocument on the erroneous basis that the appellant was from, and would be returned to, the KRI when he was in fact from Kirkuk. However, she submitted that this did not impact on the judge’s findings at [20] to [39] dismissing the appellant’s asylum claim.
Findings – Error of Law
10. As the respondent concedes, the judge plainly made a material mistake of fact at [41], [43] and [44] by considering the appellant’s ability to return to Iraq and redocument himself on the erroneous basis that he is from the KRI rather than Kirkuk in government-controlled Iraq. That misunderstanding infected the judge’s approach to the country guidance case of SMO & KSP (Civil status documentation; article 15) Iraq CG [2022] UKUT 00110 (IAC) and meant that she did not carry out a proper assessment of whether the appellant could safely return to his home area from Baghdad without the necessary ID.
11. However, I agree with Mrs Nolan that the judge’s error does not infect her findings at [20] to [39] regarding the appellant’s asylum claim. Contrary to what is asserted at paragraph 12 of the grounds of appeal, there is nothing in the judge’s findings in relation to the asylum claim that is obviously tainted by the judge’s belief that Kirkuk is in the KRI. Those findings can therefore be preserved.
12. While the judge did not err when making findings at [42] and [45] regarding the health of the appellant’s wife, given that it is possible that her health condition may change by the time of the remaking hearing, I do not propose to preserve those findings.
Disposal
13. Mrs Nolan submitted that the appeal could be retained for remaking in the Upper Tribunal given that the scope of the rehearing will be limited to the issue of redocumentation. Ms Miszkiel, however, argued that the appropriate course of action would be to remit the appeal to the First-tier Tribunal because (a) the appellant’s appeal was not properly considered in the first instance and he should not therefore be deprived of the benefit of a two-stage appeal process; and (b) the appellant may want to file further evidence, including expert reports, in response to the new country guidance decision expected later in the year, and that would mean that fact-finding would be extensive. Neither party suggested that the appeal should be stayed pending the outcome of the new country guidance case.
14. The general principle is that cases will be retained by the Upper Tribunal for remaking subject to the exceptions set out at paragraph 7.2 of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal, namely (a) the effect of the error has been to deprive a party of a fair hearing or other opportunity for that party’s case to be put and considered by the First-tier Tribunal; and (b) the nature and extent of any judicial fact-finding which is required for the appeal to be re-made means that it is appropriate to remit.
15. Having considered the case of Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), I am satisfied that it is appropriate to remit the appeal in accordance with paragraph 7.2(a) of the Practice Statement. In the present case, the fact in question – that Kirkuk is not in the KRI – is established, i.e. it is uncontentious and objectively verifiable. Furthermore, the appellant is not responsible for the judge’s mistake, which played a material part in the judge’s reasoning. At [17] of Begum, the Presidential Panel found that such a mistake of fact is a species of unfairness. I am therefore satisfied that the appellant was deprived of a fair hearing before the First-tier Tribunal.
Notice of Decision
The decision of the First-tier Tribunal contains a material error of law and is set aside with the findings at [20] to [39] preserved.
The appeal is remitted to the First-tier Tribunal in Newport to be reheard by any judge other than Judge Clarkson.

M R Hoffman

Judge of the Upper Tribunal
Immigration and Asylum Chamber

16th July 2025